A few days ago Ken Cuccinelli, Virginia’s new conservative Republican attorney general, “advised the state’s public colleges that they don’t have the authority to ban discrimination based on sexual orientation, saying only the General Assembly has that power,” producing a stampede of criticism not only from the usual suspects but also others who are not reflexively anti-Republican.

Students at Virginia Commonwealth University, one of the few in the state not on break, planned a rally for noon Wednesday, with several hundred students committed. At Christopher Newport University, student Republican and Democratic leaders will discuss their next steps at a bipartisan meeting Friday.

“I’ve never gotten so many e-mails from students wanting to do something,” said Brandon Carroll, 21, president of the student government at Virginia Tech. He said any erosion in gay rights at state universities is “going to make us lose top students. It’s going to make us lose top faculty.”

And, the Post reports, not just students were agitated:

A growing number of industry leaders have also lined up against the directive from Cuccinelli (R), some portraying it as a threat to the quality and competitiveness of Virginia’s higher-education system. …

Leaders of academia attacked the state directive on several fronts. The head of the Virginia conference of the American Association of University Professors wrote in a letter to the governor that any discrimination not grounded in qualification or merit “is abhorrent to the values of higher education.”

Public universities generally are afforded autonomy by state governments in writing policy, said Peter McPherson, president of the Association of Public and Land-grant Universities. Virginia state code, however, is “somewhat vague” on who makes the rules, said Kirsten Nelson, spokeswoman for the State Council of Higher Education for Virginia. …

Robert M. O’Neil, former president of U-Va. and now director of the school’s Thomas Jefferson Center for the Protection of Free Expression, said in an e-mail, “it is far from clear that the Attorney General would be expected to or even empowered to turn back the clock on such a vital issue of public importance,” noting that the state’s higher-education community is “unanimous in its commitment to equality.”

What a royal, stupid, unnecessary mess, as John Farrell noted in U.S. News & World Report:

When the Republicans in Virginia staged a comeback last fall, they did so by persuading independent voters that the GOP had given up its desire to police our bedrooms, and would focus instead on pragmatic solutions for serious issues, like the dearth of jobs, the cost of education and the surplus of traffic. Here was the model for a Republican resurgence in 2010, the wise guys in Washington said.

But the paint wasn’t dry in the office of Attorney General Ken Cuccinelli II before he jumped at the chance to indulge in gay-bashing. He dashed off a letter to the state’s colleges and universities, telling them to rescind their policies that ban discrimination on the basis of sexual orientation.

Now, some may regard this as a minor point and others may regard it as irrelevant, but before saying more I should point out that Cuccinelli’s legal argument may in fact be correct. It is not at all clear that Virginia’s public colleges do have the legal authority to go beyond state law in banning various forms of discrimination.

[s]ome lawmakers called Cuccinelli’s stand consistent with legal opinions offered by past attorneys general, who have advised local governments that they do not have the legal right to add sexual orientation to their policies without authorization from the General Assembly.

But legalities aside, even if Cuccinelli is correct on the law, that doesn’t mean he should have charged ahead provoking a public firestorm on a controversial social issue, especially after the Republican ticket headed by newly elected Gov. Bob McDonnell had studiously avoided social issues in the campaign. If Cuccinelli had revealed an intention to tell colleges they could not prohibit discrimination against gays there’s a chance neither he nor even Gov. McDonnell would have been elected.

Let me now make this issue personal. Not only did I support Cuccinelli, but on more than one occasion (especially one at a fundraiser for him that he will recall) I urged him to do something that he may regard as similar to what he has done: pledge during the campaign that as attorney general he would do whatever he could to rescind racial preference policies in Virginia. (I gave the same advice to Bob McDonnell.)

Cuccinelli pointedly refused, provoking me to send the following email to three conservative friends on Sept. 26, 2009:

You three are no doubt much more experienced than I at being disappointed by Republican politicians, so I thought I would share with you our sad experience last night at a fundraiser for Ken Cuccinelli, running as you know for Va. AG.

You probably also know that he’s VERY conservative — uncompromisingly pro-life, against Kelo even before Kelo was decided, a thorn in the side of the go-along to get-along Republican old boys in the state senate, etc., etc. He gave impressive, even moving remarks to the supportive gathering in the imposing McMansion of the sponsor … about the importance of sticking up for the Constitution “as written,” about First Principles (which he seemed to capitalize even in speech) and how compromising them was not only unprincipled but bad for the party and hence for the country. Etc., etc.

All in all, very impressive, as is his record. Which made my disappointment more severe: in conversation, he refused to stand up for the “without regard” principle. I’ve drafted a blog post, which I attach below, but I probably won’t post it out of concern that maybe there was an expectation that the gathering would be private. No one said “off the record,” but I still feel a bit funny about it. … Anyway, this now makes you a select (and small) audience. What a bummer. If we can’t get Republicans as professedly principled as Cuccinelli to stand up for treating everyone without regard to race, maybe we should just pack up and go home. (Oh, wait. I am home….)

I didn’t post it, but I see no reason not to do so now, a bit late:

Depressing Words From An Appealing Candidate [DRAFT 9/26/09]

Helene (the Discriminating Wife) and I went to a fundraiser tonight for Ken Cuccinelli, the Republican candidate for attorney general in our statewide election this November. …

In many ways it is hard to imagine a more appealing candidate. A conservative (actually, very conservative) state senator who has been re-elected twice in a very liberal, Democratic district in Northern Virginia (the only remaining Republican in the delegation from Northern Virginia), he has a strong record standing up not only for conservative policies (which has often made him unpopular with other Republican office-holders) but even conservative principles, from which he makes it a point of pride not to back down.

Indeed, his remarks tonight were infused with dedication to those principles and how it is not only unprincipled but bad politics for Republicans to compromise them in misguided efforts to woo interest groups or, for whatever reason, to appear more “moderate.”

I was impressed, which probably increased my disappointment with his firm refusal to stand up for the “without regard” principle. In conversation, I gave him what I thought, and still think, a brilliant (if I do say so myself) suggestion: ask his Democratic opponent in one of their next debates whether or not he agrees that all Americans should be treated by their governments without regard to race, creed, or color. This would, of course, put his opponent (and, in fact, any Democrat) on the spot: if he agreed, he would be admitting his opposition to affirmative action; if he disagreed, he would be offending the overwhelming majority of voters who still revere that principle.

Cuccinelli, however, although he agrees with the principle, and would say so if asked (and even as a state senator, offended the higher education establishment by trying to get it to reveal data on admissions preferences), would not go, as they say, “pro-active” with it. “I want to get elected,” he said, “and there are too many people who equate colorblindness with opposing civil rights.” He was not swayed by my pointing to survey data, with which he professed familiarity, confirming that a substantial majority supports colorblindess, nor could I shame him by saying Republicans should not let Democrats continue to get away with sliming the “without regard” principle.

Disappointing. Especially now, when large numbers of people are fed up with being called racist for the offense of criticizing Obama’s health care policy and would like a politician to stand up for them.

Cuccinelli’s unwillingness to stand up for the “without regard” principle of colorblind non-discrimination during the campaign followed by his eagerness to proceed now with an equally undisclosed social agenda, one that at least appears to condone discrimination, makes his campaign silence seem duplicitous.

What? You’re not shocked that a politician was duplicitous? Then you probably also won’t be shocked at the hypocrisy, for lack of a better word, of Cuccinelli’s most outspoken critics. Do those 3,000 students and others who proclaim in Facebook that WE DON’T WANT DISCRIMINATION IN OUR STATE UNIVERSITIES AND COLLEGES! object to the racial preference policies that are pervasive in Virginia, as elsewhere? Isn’t a policy that favors some and disfavors others based on their race discriminatory?

And what of the Virginia Conference of the AAUP, which proclaimed in its letter to Governor McDonnell that “discrimination on grounds irrelevant to qualifications and merit is abhorrent to the values of higher education and to the Commonwealth of Virginia.”

Really? If so, where are its equally principled letters and statements opposing racial and ethnic preferences? Does it not regard racial and ethnic discrimination as “abhorrent”? Apparently not, since the AAUP strongly supports affirmative action and was “troubled” when Michigan voters passed a constitutional amendment prohibiting their state from discriminating against, or giving preferential treatment to, individuals or groups based on their race, gender, color, ethnicity, or national origin.

And the only way former UVa president Robert M. O’Neil can be correct in his assertion that the state’s higher education community is “unanimous in its commitment to equality” is if the version of “equality” they support does not preclude treating some people better and others worse because of their race or ethnicity.

If Cuccinelli were smart, a possibility considerably dimmed by his recent maneuver, he would turn his lemon into lemonade by inviting a wide open dialog across the commonwealth on the meaning of equality and the sorts of discrimination it precludes. As part of that dialog, he could ask whether any public colleges in Virginia are treating gays the way they treat other selected minority groups, i.e., with preferential treatment, an issue I’ve discussed on PJM here and here.

UPDATE

“Attempting to douse a political firestorm set when his attorney general decreed” that Virginia colleges lacked the authority to ban discrimination against gays, Gov. Bob McDonnell moved quickly on Monday to countermand AG Cuccinelli’s order. “It has caused too much fear and too much uncertainty in the business community and the higher-education establishment and among young people in the commonwealth,” McDonnell told reporters, “and I simply won’t stand for that.” (Especially, cynics might note, while the state is trying to attract gay-friendly Northrop Grumman to Fairfax County.)

The McDonnell decree is not an executive order and does not establish new law, but according to Prof. A.E. Dick Howard of the UVa law school it does give employees additional recourse under existing law. At best, it’s a stopgap measure, since the pressure will increase for a new state law, causing further tension among factions of Virginia Republicans. As Steve Waters, a Republican operative allied with party conservatives, pointedly put it, “there is trouble in the Republican house when the attorney general seems to side with the grassroots of the Republican Party and the governor and lieutenant governor seem to be straying away.”

UPATE II

“You know you’re not having a good week,” the Richmond Times Dispatchreported Sunday (March 14), “when Comedy Central’s The Daily Show lampoons Virginia’s anti-discrimination policy that excludes sexual orientation.” Jon Stewart, a graduate of William and Mary, called that segment, “Gaywatch, Virginia Edition.”

As unfortunate as this kerfuffle has been (the headline of the Times Dispatch’s article is “Bias Dispute Knocks McDonnell Off Stride”), much of he criticism of Cuccinelli is little more than partisan hyperbole. In an op-ed on March 15, he gave a cogent explanation of his position:

A review of the law and the opinions of no less than five of my predecessors — Democrats and Republicans alike — demonstrated that any decision regarding the creation of a specially protected class belongs exclusively to the General Assembly. A public university simply lacks the power to create a new specially protected class under Virginia law. …

As a legal matter, this statement of Virginia law has not been seriously challenged. While issues related to sexual orientation are among the most emotional and controversial, they do not change this fundamental proposition of Virginia law. My now well-publicized letter simply stated the current state of Virginia law; it did not advocate for any particular legislative position. Should the General Assembly change the law, my advice will be consistent with it.

The General Assembly has considered and defined the protected classes for purposes of nondiscrimination statutes. It has specifically defined unlawful discrimination at educational institutions. The Virginia Human Rights Act states that it is the policy of the commonwealth to “safeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability, in places of public accommodation, including educational institutions.” In addition to this affirmative statement, the General Assembly has on numerous occasions, including this session, considered and rejected creating a protected class defined by sexual orientation. No state agency can reach beyond such clearly established boundaries.

Nothing I have said or written authorizes unconstitutional discrimination against any person. My letter in no way addresses the legislative issue of including sexual orientation in non-discrimination policies. I believe that our colleges and universities do not illegally discriminate against any class of persons. Likewise, I do not believe they can or will after my restatement of Virginia law.

The people of the commonwealth, through their elected representatives, determine Virginia’s laws. I cannot bend the law to fit a particular outcome, no matter what a person or group might wish, myself included. I have simply stated what is and is not currently permissible under the laws of Virginia. That is my job as attorney general.

Not a bad argument at all. In retrospect, however, it would have been better if the AG had kept it to himself for a while, or consulted more widely before acting.

Virginia colleges and universities DO lack the authority to include any language banning discrimination based upon sexual orientation – they also lack the authority to ban discrimination based upon whether a person is a veteran – but that doesn’t stop some of them from including it in their student handbooks. Just because we want it to be, doesn’t mean we just forge ahead without regard to the law. The AG may have caused a firestorm with his e-mail to the colleges, but the facts don’t change. If we want this anti-discrimination language to be allowed – we must get the General Assembly to actually look at and vote on the matter – something they have continually refused to do. Who should the people really be mad at?

Our coterie of class warriors cannot stand the fact that the 14th amendment is supposed to apply equally to all citizens. It was intended to make discrimination illegal, not allow it as a remedy to gift ephemeral privileged groups who demand special rights as the country’s anointed victims.

So the many other thousands of college students who did not join the petition support the AG. What is he worried about. This is a tempest in a teapot.

College kids are all about them-me. If it makes them look good to support gays and rail against an AG, they will do it. Hip ya’ know. But if you were to ask those same supporters if they would give up their seat in college for a gay, minority or other
“protected class” they would say you were crazy. Being hip only goes so far…

I wonder if Cuccinelli will take the same stand against VA’s public universities & colleges creating their own gun regulations when they have no authorization to do so – they illegally overreach and subvert State law by doing so.

Mr. Rosenberg – Cuccinelli is absolutely right in his statement about sexual orientation (especially in update II) – It is up to the legislature to make the law, not the administration. If the legislature keeps passing up the opportunity to change the law, then the law as it stands. Those who criticize Cuccinelli, while at the same time allowing discrimination via “affirmative action” are nothing less than hypocrites. As for Cuccinelli himself not wanting to enforce non-discriminatory admission standards, that does not speak well of him either. Separate but equal was wrong in 1896, and its equivalent is wrong today.

The divide here more closely correlates to a statist versus non-statist approach, it seems to me.

The more vocal critics of Cucinelli’s arguably ill-timed, yet basically correct reading of existing Virginia statutes are in fact arguing for state intervention, where, based upon reaction of both students and administrators, through their revulsion at the concept of discrimination based on sexual orientation, appears to demonstrate a lack of compelling need for such intervention on the part of the government.

In pointing this out, Cucinelli does appear to be consistent in his previous position, inferred from his statements on the limited role of government, and has not hypocritically opined for state intervention to serve what may be a personally held belief on the subject of sexual orientation. He has, rather publicly, re-iterated his position for ‘without regard’ holding that discrimination, in any form, is wrong.

When it comes down to the matter of trust, I’d place my trust in officials that hold the principle that the playing field be, in fact, level, with the only governmental intervention be on a by exception basis for specific instances where it is not, rather than officials who feel that the government should reach into people’s lives as a (ostensibly) beneficent guiding hand, constantly orchestrating society, because the subject of what should be orchestrated is too often, and too easily determined by little more than the whim of those that would exercise such control.

And the long term odds of being able to live one’s life as they please, in the pursuit of happiness, are much greater with the former, than the latter.

So, he was correct on the law? And he’s the AG, the guy responsible for enforcing the law? Sounds like he’s doing his job. What exactly is the problem? Oh, it’s not PC? Isn’t he suppose to be doing his job anyway, even if it’s not PC? And aren’t people tired of PC, anyway? But, but, but… it’s moralizing! Really? Sez who? Isn’t it really just about the law?

Well, not if it goes against the Leftist agenda. Can’t have those cursed Pubs moralizing! There’s no room for that in public fora! Whatever lie works. The law? Who cares about that? There’s the Greater Good involved, here! We can set aside the law without any rebuke, because it’s justified….

In 1992 Bill Clinton ran as a pragmatic moderate who would fix the economy. Upon being inaugurated, one of the first things he took up was the gays in the military issue. That choice of priorities began the tailspin that almost destroyed his Presidency.

Cuccinelli is doing the same thing in reverse. I hope he learns his lesson and recovers.

Given the power of the Gay Gestapo and its absolute control of the media, when would it ever be a wise move politically to oppose them on any issue.
If you disagree with them on anything, no matter how extreme; it is only a question of when not whether you are going to have a conflict with them.

Mr. Rosenberg:
“Not a bad argument at all. In retrospect, however, it would have been better if the AG had kept it to himself for a while, or consulted more widely before acting.”

Why? Attorneys-General aren’t supposed to be in there to win popularity contests, but rather to enforce the laws as they are written, a fact of the job that is, if the duties of the office are going to be faithfully executed, going to make one unpopular.

How long are we going to keep falling for this “victim redress” ploy of the Left?
As if they REALLY care about homosexuals…like they care about Blacks, or women or any of the rest of their tools for that matter.

The reason behind this “kerfuffle” is the outrage of Leftist college administrators,(and being Dean of a University to a moonbat is as having one’s own teevee fishing show is to a red-neck…”wet-dream job”!), at being told that they cannot, after all is said and done, be tyrants at their state-supported schools.

I hope that AG Ken Cuccinelli will find time to address a sovereignty issue. The Virginia Port Police, a state agency, is tasked with enforcing Federal “regulations”…to wit: the Department of Homeland Security through the US Coast guard mandates that Virginia Ports be “gun-free” zones…irregardless if one holds a valid Virginia Permit to Carry a Concealed Handgun or not.

Commonwealth Police enforcing Federal “requirements”…riiiiiight!

One hopes that Richmond will jopin the very long and time-honored line of august bodies who will have told the Coast Guard to urinate up a rope.

#9 gs – No, Thompson didn’t have the best policies. He had a policy that he liked McCain, instead of seeing Mccain as the Quisling he is. It’s that old Senate collegiality BS. No enemies in the Senate. More Leftist, power-seeking lies.

Again we see that the contextual substance of Cucinelli’s remarks are being completely ignored in favor of “kerfluffling”.

Cooch, (may I call him “Cooch”?), was giving a reasonable answer to a hypothetical question that was asked of him by an apparent “Birther”.

And by the way, until the Alleged Hawaiian stops lawyering up to keep his vault-copy birth certificate locked away from the American people, and releases the document, you can count me among the “Birther” ranks also.

All of THAT “kerfuffle” isn’t going to go away because Barack Obama refuses to fully comply in proving that he meets the requirements of the Constitution for the office he was elected to.

oh please. As a Virginian with gay friends, the level of caring is -2. Unless there is a concerted effort to block gays from participating in public activities as citizens I don’t care. I’m more worried about jobs then making (fellow) libs feel good about themselves because the AG put his foot in his mouth.